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A difficult employee whose behavioral problems weren’t adequately documented can advance his challenge of a termination decision to trial, a recent case shows.
Documentation wasn’t the only issue in the case. Another factor was that the employee’s manager made an insensitive remark about Family and Medical Leave Act (FMLA) leave, and the worker was fired shortly after filing an FMLA leave request.
But if the employee “had been on a final warning for his behavior, the result likely would have been different,” said Joan Casciari, an attorney with Seyfarth Shaw in Chicago.
James Hefti worked as a tool and die designer for Brunk Industries in Lake Geneva, Wis., for about 15 months before he was fired in March 2013. While employed, he often insulted co-workers. For example, in July 2012, Hefti sent an e-mail to a co-worker telling him, “Get your butt in here on Sunday, damn it ... LOL … beaaach.”
He told another employee, “You’re my bitch” and made other offensive comments to this worker in e-mails that made the department manager worry that the insulted worker would quit.
Hefti requested FMLA leave in March 2013 because his son was suffering from mental health issues. Hefti needed to arrive to work late or leave early a couple of times per week to drop his son off at school or pick him up.
When Hefti informed the department manager about his son’s health issues, the manager allegedly told Hefti that the company paid for Hefti’s insurance and expected him to be at work. After Hefti told the manager that he had handed in his FMLA paperwork, the manager appeared frustrated and aggravated, according to a U.S. District Court for the Eastern District of Wisconsin decision.
Hefti discussed his leave request with an HR administrator, who said his son’s condition was covered under the FMLA but that his son’s doctor would have to fill out an FMLA form and return it to her. Hefti returned the completed form on March 22, three days before he was fired.
Hefti was fired for unprofessional and inappropriate communications with co-workers, Brunk said after Hefti brought suit under the FMLA.
In Hefti’s third-quarter 2012 review, the department manager wrote that he “discussed with Jim the feedback that I have gotten from others about how his e-mails appear offensive and his personality the same. I asked him to be cognizant of this feedback and to try to keep himself approachable.”
And at Hefti’s fourth-quarter 2012 review, delivered in March 2013,the supervisor expressed unhappiness with Hefti’s sarcasm. Hefti received an overall score of 3.5 out of 5 in his full-year review and two 4s out of 5 in different “work behavior” scores.
On March 25, the department manager recommended Hefti’s termination to Brunk’s HR manager.
After Hefti learned he was fired, he approached the HR manager very upset, the court stated in its decision, and asked why Brunk was not protecting him from “bull---- allegations.” The HR manager called police to escort Hefti from Brunk. As he left, Hefti told the department manager, “You haven’t heard the last of me!”
Hefti argued that the timing of the termination was suspicious because it came two weeks after he requested FMLA paperwork and three days—just one workday—after he submitted the FMLA form.
The court said that the department manager’s statement that he expected Hefti to work because Brunk paid for his insurance “strongly suggests discriminatory intent.”
The court, noting that Hefti earned high performance-review marks for “work behavior,” also observed that Hefti was not warned that he could be fired if he continued to be combative with co-workers. So, the court sent the case to a jury to decide.
Casciari said she thought the decision was “terrible,” because the employer “had a perfectly legitimate reason to get rid of the plaintiff.” She said Hefti’s belligerent behavior toward the HR manager when he was fired was “particularly alarming.”
“Nastiness is a factor only to the extent that it provides a performance-based reason for the employee’s discharge,” Anne Larson, an attorney with Ogletree Deakins in Chicago, told SHRM Online.
She said the case showed that the company “mishandled this situation. It let the bad conduct drag on for nine months without effectively addressing it.
“He was certainly never warned that his conduct could cost him his job,” she said. “Then, only two weeks before he was fired, he received a great performance appraisal. The message the company sent was that it was going to put up with his negative behavior as long as he didn’t request FMLA leave.”
Larson recommended “training this supervisor on how to better manage his employees [and] how to develop a written record of warnings to support discharge and employee rights under the FMLA.”
“Operations management does not need to know all of the ins and outs of the FMLA, but they need to be aware that the law exists and that it provides legally protected time off to employees who qualify,” said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. She also likes for managers to have at least a general understanding of the breadth of reasons that qualify for FMLA coverage—and the concept of intermittent FMLA leave—because “many people think the FMLA applies only to cancer, heart attacks, major surgery and childbirth.”
Shea emphasized that managers should not express opinions about whether employees are entitled to FMLA leave. Instead, FMLA requests should be immediately referred to HR, the benefits team or the company’s third-party administrator.
Casciari questioned whether driving a child with mental health problems to school is an FMLA event. “I do not think it is,” she remarked, adding that if Hefti was driving his son to doctor’s appointments, this would be covered.
This decision is Hefti v. Brunk Industries, No. 14-C-729 (E.D. Wis. 2015).
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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